Steere v. Gingery

• Decision Date: 15 December 1909
• Citation: 123 N.W. 863,24 S.D. 423
• Parties: STEERE v. GINGERY.
• Court: South Dakota Supreme Court

123 N.W. 863

24 S.D. 423

STEERE v. GINGERY.

Supreme Court of South Dakota

December 15, 1909

Appeal from Circuit Court, Jerauld County.

Action by F. M. Steere against J. C. Gingery. Judgment for plaintiff. Defendant appeals. Affirmed.

See also, 21 S.D. 183, 110 N.W. 774.

T. H Null, for appellant.

E. E Wagner, for respondent.

SMITH J.

This is an appeal from an order of the circuit court of Jerauld county, sustaining a demurrer to the answer of defendant, in an action wherein the plaintiff sought to recover a certain sum as commissions, in a transaction involving an exchange of lands in this state for other lands in the state of Illinois. Appellant contends that the answer demurred to sets up facts which show that the cause of action alleged in the complaint has become res judicata, and therefore the plaintiff cannot recover in this action. We do not deem it necessary to set out the pleadings in full, because a brief statement of the facts will serve to make clear the grounds of appellant's contention. A former trial of this action was had in the circuit court on issues raised by the pleadings as they then stood. From a verdict and judgment in favor of plaintiff, and an order overruling a motion for a new trial, defendant appealed to this court, where a reversal was had, and the cause remanded for a new trial.

The opinion of the court is found in 21 S.D. 183, 110 N.W. 774. As appears therefrom, the ground of the reversal was a fatal variance between the allegations of the original complaint and the evidence. In brief the allegation of the complaint was that the commissions were earned by a sale of the land through plaintiff's services, while the evidence disclosed an exchange of defendant's lands for other lands in Illinois. On the return of the cause to the circuit court the plaintiff asked and was granted leave to amend the complaint to conform to the evidence given on the trial, by alleging that the commissions claimed were earned in services rendered by plaintiff in procuring an exchange of defendant's lands for other lands in Illinois. Thereupon the defendant filed the answer now before us, which recites in full the proceedings had on the former trial and subsequent thereto, and appellant alleges in the answer demurred to, and now contends: "That interpretation and decision of the agreements and rights of the parties to said transaction have become and are res judicata and binding on the plaintiff, and that the plaintiff is now precluded from any recovery in his action, except upon pleading and proof conforming to and supporting the said interpretation and decision of said Supreme Court, and particularly this defendant alleges that the plaintiff, by said allegation and proof on former trial, and by said interpretation and decision of said Supreme Court, is now estopped and forever barred from any claim or right to recover in this action on allegations and proof of any agreement wherein the plaintiff was to receive a commission of $2 per acre for negotiating the exchange of the lands, regardless of whether the lands received by defendant were of sufficient value to make a consideration to this defendant in excess of $14 per acre for his said land." In his brief appellant's counsel says: "In this case plaintiffs first alleged that the land was sold under a contract by which they were to receive as commissions the excess over $14 an acre, and on the trial offered proof and recovered a verdict on that version of the contract. The plaintiff now seeks to recover on an alleged agreement to pay $2 an acre, regardless of the amount per acre received for the land. This is a new contract, and not within the prior pleadings and proofs."

An examination of the evidence contained in the abstract on the former appeal shows that the actual contract between the parties related to an exchange of defendant's lands for other lands in Illinois, and that defendant fixed a net price of $14 per acre on his lands, and agreed that for the purposes of the exchange his lands were to be valued at $16 per acre, the Illinois lands being valued at $45 per acre and that for such services the plaintiff should receive $2 per acre of defendant's lands. It thus appears, as held by this court on the former appeal, that the contract proved constituted a fatal variance from the allegations of the complaint, and a new trial was awarded for that reason alone. The allegations of the amended complaint are strictly in accordance with the proof at the former trial. The contract as stated by Corson, J., in the former opinion of this court was: "That said defendant as party of the first part 'sold to the parties of the second part the following described real estate *** price $16 per acre. Parties of the first part agree to accept as part payment for same land, and the parties of the second part agree to give as part payment for said land the following described land. *** Price of this land to be $45 per acre.' It will be noticed that by this contract the price per acre of the tracts of land of the respective parties was definitely fixed, and the trial court seems to have taken the view that the contract was in effect a sale of the lands by the defendant, and hence there was no variance between the allegations of the complaint and...